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Andy McCarthy

How should we treat American jihadists?

I’ve argued here that, after a dozen years, the AUMF’s definition of the enemy needs overhaul. So, similarly, does its explanation of what force Congress is authorizing. Again, lawmakers need not address all the hypothetical situations in which it might be proper to target American citizens. But nothing prevents Congress from amending the AUMF to provide explicit protections for Americans suspected of colluding with this unique enemy. Congress could, for example, instruct that in the absence of an attack or a truly imminent threat, the president is not authorized to use lethal force in the United States against Americans suspected of being enemy combatants. Congress could also define what it means by “imminent” so it is clear that lawmakers do not endorse the Obama administration’s preposterous interpretation of that term.

Is this really necessary? I doubt it. Even if he hypothetically could, it is highly unlikely that the commander-in-chief would use lethal force against anyone in the United States — citizen or otherwise — in this conflict. The Padilla precedent, as well as the arrest and military trial of Nazi saboteurs (including one American) after their capture here during World War II, demonstrate that, even in wartime, the executive respects our strong preference for due process in the homeland. But revising the AUMF in this way, while doing no harm to the war effort, might assuage Americans understandably perturbed by the Obama administration’s insouciance on the matter of targeted killings.

Nevertheless, it would be a mistake to extend such explicit protections to Americans situated outside the United States. American citizens do not carry the protections of the Constitution with them when they leave our country — especially if they leave at a time when Congress has authorized military force, and if they then voluntarily travel to enemy havens. American law and the writ of the American courts, on which we rely for our protection at home, do not apply outside the United States. And after all, what if our forces locate al-Qaeda emir Ayman al-Zawahiri along with some of his top aides in a compound in, say, Peshawar or Aden? Are we supposed to refrain from a lethal strike because there might be an American jihadist in the room with them?

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We already have all the laws on the books necessary for Americans overseas that have committed treason. First the government declares who the enemy is, for example “Al Qaeda”, and then if Americans continue to help and assist such organization then the government amasses evidence against them and charges them with treason. I don’t see any problem with that system, it’s the law of the land, as far as I know, and that’s how it should stay. Before the government can target American citizens for execution they have to prove their case in front of a jury of said American’s peers. Al Qaeda isn’t such an unusual threat that said laws need to be changed. If there is reason the old laws don’t work then people like Andy need to make the case to the American people. So far they haven’t.

We already have all the laws on the books necessary for Americans overseas that have committed treason. First the government declares who the enemy is, for example “Al Qaeda”, and then if Americans continue to help and assist such organization then the government amasses evidence against them and charges them with treason. I don’t see any problem with that system, it’s the law of the land, as far as I know, and that’s how it should stay. Before the government can target American citizens for execution they have to prove their case in front of a jury of said American’s peers. Al Qaeda isn’t such an unusual threat that said laws need to be changed. If there is reason the old laws don’t work then people like Andy need to make the case to the American people. So far they haven’t.

FloatingRock on February 23, 2013 at 7:42 PM

Once they declare war on their own country they should be treated just like the enemy. If outside the country they should be killed. No lives should be put at risk to capture them. Jury trials for the enemy? Are you out of your mind. The old laws should be applied. The laws of war. What you are proposing are new daft liberal laws.

Yes we do keep our constitutional protections when we leave the country. Even when we travel to nations that might possibly have some tertiary connection to terrorism. Think France, Germany, England.

It is plain and simple. The federal government does not have the right to take away our life without due process. No if, ands or buts about it. But, but, but, but what if they are firing at our troops on the battlefield. As in all cases, lethal force is authorized by our military personnel, as is the case for our police forces and pretty much every citizen, in defense of themselves.

I got to say, Hot Air has changed quite a bit for the worse in the last few years.

Once they declare war on their own country they should be treated just like the enemy. If outside the country they should be killed. No lives should be put at risk to capture them. Jury trials for the enemy? Are you out of your mind. The old laws should be applied. The laws of war. What you are proposing are new daft liberal laws.

Basilsbest on February 23, 2013 at 8:01 PM

I hope in the near future they target you as a collaborator, using no evidence as you argue it is not needed, and take you out or put you in one of those prisons to never be heard from again.

You are currently setting up the processes of how the government will treat citizens in the United States of America proper when the current push for collapse comes to its end and citizens demand freedom. Anyone demanding freedom will be the enemy.

Those who give up their liberty for a little temporary and ineffective protection from harm deserve NEITHER.

Once they declare war on their own country they should be treated just like the enemy. If outside the country they should be killed. No lives should be put at risk to capture them. Jury trials for the enemy? Are you out of your mind. The old laws should be applied. The laws of war. What you are proposing are new daft liberal laws.

Another big government goon that blindly believes everything the govt says. So as long as some government official claims that an American citizen “declared war on their own country” you could care less about their rights to due process. When are you fools going to recognize that the enemy is the federal government. Thy take your money, put you and your children into debt that will ever be repaid, they want rob you if your right to bare arms but you blindly will trust their secrets that someone – without trial – is an enemy if the state. The state is obviously your master and you’re a good little lemming for them.

Once they declare war on their own country they should be treated just like the enemy. If outside the country they should be killed. No lives should be put at risk to capture them. Jury trials for the enemy? Are you out of your mind. The old laws should be applied. The laws of war. What you are proposing are new daft liberal laws.

Another big government goon that blindly believes everything the govt says. So as long as some government official claims that an American citizen “declared war on their own country” you could care less about their rights to due process. When are you fools going to recognize that the enemy is the federal government. Thy take your money, put you and your children into debt that will ever be repaid, they want rob you if your right to bare arms but you blindly will trust their secrets that someone – without trial – is an enemy if the state. The state is obviously your master and you’re a good little lemming for them.

MoreLiberty on February 23, 2013 at 8:10 PM

You assume a lot. So much so that you give the jihadist more “due process” than me. Your claim that I blindly trust the government is hilarious. I must stop wondering whether Obama is a closet Muslim.

You remind me of the leftists who became hysterical because 3 al Qaeda leaders were water boarded. That’s the same number as the number of Americans who’ve been killed by drones.

That guy still imagines that Romney is a conservative and the greatest man the world has ever produced or something to that level… Him having a valuable thought in this lifetime would be remarkable. astonerii on February 23, 2013 at 8:25 PM

When I joined the military {cough, cough} years ago, I swore to uphold and defend the constitution against all enemies, foreign anddomestic. I see no problem at all with terminating those whose intent is to overthrow our country and the constitution.

Define the method of determining their status. Define how that status is informed to the society. Define the due process.

American Citizen. United States Government. Constitution of the United States of America.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Where is the exception here?

American Citizen is covered by the Constitution. Covers the crimes. Covers the government’s burden. Somehow, I do not see the except for Jihadists.

Without evidentiary requirements and any check or balance it does not matter what they are actually doing, they could be be a geologist helping the enemy Exxon find oil in a foreign land.
astonerii on February 23, 2013 at 9:00 PM

Oh, so now the government is going to kill geologists. For fun or profit? Your hysteria would be understandable if there was any chance of that happening. I repeat. Three Americans have been killed by drones.

Once someone is identified as a jihadist (someone working to destroy the American system in order to replace it with Islam…what is your preferred tactic of dealing with them?

Mimzey on February 23, 2013 at 9:15 PM

Public and devastating and fully within the constitution.

I have yet to see the constitutional justification for picking a specific American target for ASSASSINATION. Since our government has shown NO RESTRAINT on the use of its power, and even if it did, wisdom dictates that I not hand over my freedom in order to make it EASY for them to take the lives of citizens.

No one said it was easy to keep freedom. Pay the freaking price and do what the constitution says. Their life cannot be taken without due process of law. It is very easy to create tyranny.

American target for ASSASSINATION. Since our government has shown NO RESTRAINT on the use of its power, and even if it did, wisdom dictates that I not hand over my freedom in order to make it EASY for them to take the lives of citizens.

No one said it was easy to keep freedom. Pay the freaking price and do what the constitution says. Their life cannot be taken without due process of law. It is very easy to create tyranny.

But those are individuals in OUR ARMED forces which is obvious and known to be the case. They are subject to the UNIFORM CODE OF MILITARY JUSTICE Congressional Code of Military Criminal Law applicable to all military members worldwide.

You seriously have poor comprehension of the English language.

except;
in cases arising in the land or naval forces! (one specific exception)
or in the Militia, when in actual service in time of War or public danger! (Another specific exception which signals out that Militia are treated as citizens when not performing military service in time of war or public danger)

Straight Military forces get no time out from being excepted and put under the STRICTER military laws while in the service.

America needs to reinstate the Draft on a limited basis. Just draft Lawyers and raise the ParaLegal corps. Forget Special Forces, SEALS or Rangers, the Paralegals jump in first every time. Armed lightly with enough pens and legal size paper. Their task will be to create briefs on every aspect of the possibly impending campaign. They will study the topography, search property documents of engageable areas and interview potentials allies and enemies within the zones required to determine tort potentials. Any survivors to gather the the fallens briefs for return to America. Remember the battle cry of the ACLU Ist Regiment…”No brief left behind!” “Remember the AllahMo!”

But those are individuals in OUR ARMED forces which is obvious and known to be the case. They are subject to the UNIFORM CODE OF MILITARY JUSTICE Congressional Code of Military Criminal Law applicable to all military members worldwide.

You seriously have poor comprehension of the English language.

except;
in cases arising in the land or naval forces! (one specific exception)
or in the Militia, when in actual service in time of War or public danger! (Another specific exception which signals out that Militia are treated as citizens when not performing military service in time of war or public danger)

Straight Military forces get no time out from being excepted and put under the STRICTER military laws while in the service.

The enemy is the enemy..in the military or “civilian” enemy combatant.
Talk about comprehension??
The question stated identification as the enemy. You want legal in the time of war? According to the Geneva Conventions, an enemy combatant can be shot after identification as the enemy is made.

Seriously, you sometimes come off as the mirror image of the “I think too much” left.
Paralysis by analysis.

Because that is how the government is currently handling the situation, and it is unconstitutional.

astonerii on February 23, 2013 at 9:27 PM

Yeah..I think they did that once in some distant land.

I took the question to be about moving forward with the jihadist movement in this country now and going forward. i.e. what do we do about the 35+ al Queida training camps in the U.S? What do we do about in country propaganda and recruitment efforts etc.

We treat them as bad as WE individuals want to. Scorn, derision and call to our government to get rid of them. That is what WE DO.

The United States of America though first and foremost MUST TREAT THEM AS WHAT THEY ARE and I AM and most of the commenters are on this site. A citizen of the United States of America and cosigner of the instrument that creates it, The Constitution of the United States of America.

That means, before the United States of America can treat them as a Jihadist, they must prove that they are in fact a Jihadist and go through the Due Process that establishes that fact. Once that process has been met, then per the Constitution of the United States of America, they can take their life, liberty and property.

Because this is a free nation, created by the people, that process must be public and must be subject to checks and balances. The Presidency, the Legislature and the Judicial branches all have some degree of power to veto the use of this power to prevent abuse of this power.

I took the question to be about moving forward with the jihadist movement in this country now and going forward. i.e. what do we do about the 35+ al Queida training camps in the U.S? What do we do about in country propaganda and recruitment efforts etc.

I’ll take that for what it is. You disagree with learned counsel, but you can’t cite any authority in support of your position.

Basilsbest on February 23, 2013 at 9:59 PM

The Constitution of the United States of America.

Or do you think that the court decided constitutionally correctly on Roe V Wade, that blacks should get special privilege for a few more decades, that social security is constitutional, that it is constitutional for the government to restrict trade between the states and do so through the commerce clause, that the federal government can provide for education and so forth…

Or do you think that the court decided constitutionally correctly on Roe V Wade, that blacks should get special privilege for a few more decades, that social security is constitutional, that it is constitutional for the government to restrict trade between the states and do so through the commerce clause, that the federal government can provide for education and so forth…

astonerii on February 23, 2013 at 10:07 PM

The Constitution? So you can’t cite any law in support of your posision. Have you even read any?

The Constitution? So you can’t cite any law in support of your posision. Have you even read any?

Basilsbest on February 23, 2013 at 10:14 PM

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Even treason requires due process of law. You know what infamous means right? Blatant out in the open known by EVERYONE bad thing, the stuff of legends and history making. Even those people are afforded DUE PROCESS OF LAW.

I am against them, and I highly encourage the government to prosecute them using the due process created by the government to do so. I do not desire for the government to go around apprehending anyone it wants to and saying, but he was a pedophile, so we can just dispense with the trial and go straight to execution. Now, if they preyed on my daughter, that person had better hope the government gets to them first!

I can see how you still support Romney the citizens rights thieving Governor as a GOD. It is not taking the citizens rights as a state, because, well, because. But the Federal government cannot do it. Well, now that it looks like I will be president, those are no longer considered rights of the people under the constitution.

Yup, because the plain language of the Constitution is fluid and flexible and changes based on who is in office and what the government wants it to look like at the moment.